ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK Thirteen years after her divorce from Gregg Saunders (“Gregg”), plaintiff Lisa Neckritz Koral (“Lisa”) brought suit against the Estate of Gregg Saunders, and against Gregg’s widow (Alsou Saunders), individually and as administratrix of the Estate, claiming that Gregg misrepresented the value of his real estate investments during divorce proceedings. As to one commercial property investment, it is alleged that Gregg sold half of his share for hundreds of thousands of dollars, failed to disclose the sale or the proceeds to Lisa or to their neutral appraiser, and then concealed the fact of the sale — thereby depriving Lisa of her share of their marital assets. The United States District Court for the Eastern District of New York (Feuerstein, J.) granted summary judgment in favor of the defendants on the ground that the discovery rule did not apply to Lisa’s claims and dismissed Lisa’s claims as time-barred; the district court did not consider whether Lisa’s claims should be tolled. We affirm in part, and in part vacate and remand for consideration of the doctrine of equitable estoppel as to one of the contested investments. Judge Kaplan dissents in a separate opinion. DENNIS JACOBS, C.J. This diversity suit arises from the 2004 divorce of Lisa Neckritz Koral (“Lisa”) and Gregg Saunders (“Gregg”). In the divorce proceedings, they traded statements of net worth (among other disclosures), conducted an appraisal on several commercial properties fractionally owned by Gregg, expressed satisfaction that their assets were fully disclosed, and disclaimed further inquiry. They signed a stipulation of settlement in July 2004; their divorce was final within a month. Gregg died in a car accident nearly a decade later, and Lisa was deposed in connection with his wrongful death proceeding. During her 2016 deposition, Lisa was advised that Gregg’s investments in commercial property may have been worth millions of dollars. She then became suspicious that Gregg had misrepresented the value of his real estate holdings, that the appraisal was inaccurate, and that the stipulation of divorce settlement was induced by fraud. A year after the deposition, Lisa commenced this fraud action against the Estate of Gregg Saunders and against Alsou Saunders, Gregg’s widow, individually and in her capacity as administratrix. This appeal is taken from the judgment of the United States District Court for the Eastern District of New York (Feuerstein, J.), which dismissed the complaint on summary judgment, on the ground that the claims are barred by the statute of limitations. Notwithstanding that this suit was filed thirteen years after the divorce, Lisa contends that the suit is timely by virtue of the discovery rule or equitable estoppel.1 As the district court held, the discovery rule does not apply to Lisa’s claims. However, the district court did not consider whether Gregg’s alleged fraudulent concealment warrants tolling the statute of limitations. The evidence suggests that Gregg may have committed fraud in connection with the sale of one of his real estate holdings, and then concealed that fraud. Accordingly, we affirm in part, and in part vacate and remand so that the district court can determine whether equitable estoppel tolls Lisa’s claims arising from Gregg’s sale of that investment. I Lisa and Gregg married in 1997 and filed for divorce in 2002. During their marriage, Gregg worked in the commercial real estate business as a broker and investor. The value of his commercial real estate investments was an issue during the divorce proceedings, including (as relevant in this appeal) the value of a property in Danbury (the “Danbury Property”), a property in Southbury (the “Southbury Property”), and a property in Long Island City (the “LIC Property”) (together, the “Properties”). At the outset of proceedings, the parties exchanged net worth statements. Gregg’s “Statement,” made under penalty of perjury, gave the combined value of his real estate holdings, bank accounts, and home equity, among other assets, at $855,000 as of August 6, 2002. An addendum described the Properties and represented that they contributed nothing to Gregg’s net worth. An affirmation from Gregg’s lawyer, dated June 2002, described the Properties based on Gregg’s representations (the “Affirmation”). The parties jointly retained an accountant from PricewaterhouseCoopers to appraise the Properties (as well as two other properties not at issue on appeal). Following his review, Richard Marchitelli (“Marchitelli”) issued a report (the “Report”) concluding that the LIC Property and the Danbury Property were worth nothing, and that the Southbury Property was worth $755,000. The Report came with important caveats. First, the Properties were valued as of May 1, 2002, though the Report was issued nearly a year later on March 25, 2003. Second, Marchitelli disclosed that he lacked complete information. In particular, he lacked access to: the books and records of the managing partners of the Properties; the invoices or written documentation for most expenditures and/or equity contributions by the managing partner; full copies of the leases; and overall written documentation of revenue sources and distributions. Instead, Marchitelli relied on verbal and written representations by Gregg, his partners, and his partners’ representatives, and (presumably) market conditions and professional expertise. Lisa’s counsel questioned the accuracy of Marchitelli’s preliminary reports, and complained that Marchitelli was not “given complete and full information.” Joint App’x 248. Nevertheless, though Lisa considered retaining a second real estate expert, she ultimately instructed her attorney to take no further steps in connection with the appraisal of Gregg’s property. Although Gregg provided Lisa with the Statement and participated in the appraisal process, Lisa remained skeptical about the accuracy of Gregg’s disclosures. Accordingly, on August 23, 2003, she deposed him regarding his assets. When asked about his ownership interest in the LIC Property, Gregg testified: I don’t know because I am in an entity that is in partnership with another entity, so it may be 18.9 percentage or — I think it might say like 18.9 percent, but that is 18.9 percent of 45 percent of 100 percent. I don’t know specifically. Joint App’x 616. On July 22, 2004, Lisa and Gregg entered a stipulation of settlement (the “Stipulation”), which specified the division of assets, and provided that Gregg would take possession of each of the Properties. The Stipulation also set forth several representations: the parties “ha[d] made full disclosure of all assets or income in a net worth statement furnished to the other party through counsel”; they had conducted independent inquiries into the financial circumstances of one another through discovery and with the aid of a neutral appraiser; and they had “conducted discovery to their satisfaction.” Joint App’x 74. The parties waived their rights to additional inquiry and represented that their attorneys were instructed to take no further steps in connection with the investigation or appraisal of the other’s property. Id. The parties acknowledged that the “financial status of the parties has been fully explained to both parties by counsel,” and that the Stipulation “is not the result of any fraud, duress, coercion, pressure or undue influence.” Id. at 76. The Stipulation was incorporated into the Judgment of Divorce in August 2004. Gregg died in a car accident in 2012, and Lisa was deposed in the wrongful death action in 2016. According to Lisa, the Estate was then “forced to reveal details about [Gregg's] finances and his real estate holdings,” and she learned from the insurance company that the real estate in which Gregg had invested was worth “tens of millions of dollars” at the time of the divorce. See id. at 11
